Sweeney v Sir Robert McAlpine & Sons Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STAMP,LORD JUSTICE ROSKILL |
| Judgment Date | 18 October 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1018-1 |
| Date | 18 October 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J1018-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants from order of Mr. Justice Wien on 16th July 1973.
The Master Of The Rolls (Lord Denning)
Lord Justice Stamp and
Lord Justice Roskill
Mr. DERMOD O'BRIEN (instructed by Messrs. Park Nelson Dennes Redfern & Co., London agents for Messrs. Wansbroughs of Bristol) appeared on behalf of the Appellant Defendants.
Mr. JOHN PEPPITT (instructed by Messrs. J. E. Baring & Co.) appeared on behalf of the Respondent Plaintiff.
We need not trouble you, Mr. O'Brien.
Michael Sweeney was an Irish workman whose home is in County Donegal in Ireland. In July of 1969 he was working at Hinckley in Somerset where the contractor, Sir Robert McAlpine & Sons, Ltd., were building a power station. He was on a goods hoist. It plummeted to the ground with him on it. He was injured in his back. He was in England for some 13 days and he then went back to Ireland. No claim whatever was made by him or on his behalf for years. No letter before action at all. The first that McAlpines heard of any possible claim was nearly three years later. On 3rd July 1972 on Michael Sweeney's behalf a writ was issued against McAlpines claiming damages for personal injuries. It was issued by London solicitors, Messrs. J. E. Baring & Co., who were acting as agents for a solicitor in County Donegal. That writ was served. Appearance was duly entered on behalf of McAlpines. A statement of claim ought to have been delivered towards the end of July. But it was not. The defendants agreed to give an extension of time until the end of the vacation, that is until early October 1972. Still no statement of claim was delivered. On 25th January 1973 the defendants wrote to the plaintiff's agents: "Your extension expired over three months ago, and accordingly unless you proceed with this action forthwith, we shall have no alternative but to apply to the Court to strike out the plaintiff's claim."
On 6th February 1973 the defendants wrote: "If you do not serve a statement of claim by the 28th February, 1973, we shall issue a summons to strike out." Still no statement of claim was served. So on 3rd April 1973 the defendants applied to dismiss the case for want of prosecution. A day or two later, on 5th April 1973, the plaintiffs delivered a statement of claim.
This alleged that McAlpines were negligent in failing to ensure that the hoist was in sound condition and in not having a safe system of work. The plaintiffs could not cure their default by delivering a statement of claim at that stage. So the defendants proceeded with their application to dismiss for want of prosecution.
At the hearing some very illuminating correspondence was produced between the London agents for the plaintiff and the solicitor in Ireland for the plaintiff. It shows that the London agents did all they could to get the Irish solicitor to give them the necessary information. Time after time the London agents wrote to the Irish solicitor. They asked for information so that they could put the case before the Legal Aid Committee in England, so as to get legal aid for Sweeney. Eventually the Legal Aid Committee closed their file because no information was coming forward. The London agents told the Irish solicitor that if he did not give the information they would be faced with an application to dismiss for want of prosecution. The Irish solicitor did not do anything. He did not give the information for months. Eventually, however, he did so. Legal aid was obtained and a statement of claim was prepared. It was delivered, as I said, on 5th April 1973. Even then it was quite inadequate. It gave no particulars of special damages. The Master dismissed the action for want of prosecution. The Judge allowed the case to go on. Now there is an appeal to this Court.
On reading the Judge's judgment it appears that he concentrated his attention on the six months from October 1972 to April 1973. That was the period of delay in delivering the statement of claim. The Judge found that it was inexcusable but he thought it was not inordinate. He also found that therewas no particular prejudice resulting form this period of six months. On that ground he refused to dismiss the case for want of prosecution.
The reason why the Judge concentrated on those six months was because of the case William C. Parker Ltd. v. F. J. Hamm & son, Ltd. (1972) 1 W. L. R. 1583. He read that case as deciding that the delay that really mattered was the delay since the issue of the writ: and that the previous delay was not to be taken directly into consideration. That case has, however, been considered by this Court in Colin Mason v. F. A. Asheroft (Cornmillers) Ltd., unreported, on 8th March 1973. We have obtained a transcript from the Bar Library. This Court explained that William C. Parker Ltd. v. F. J. Ham & Son, Ltd. was a case dependent on its own special facts,...
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